UPDATED. Earlier version was a draft posted by mistake. Nice tech competence by bar counsel.

Before we get to the quiz, an alert: scams continue to target lawyers. This month alone, Vermont lawyers have been targeted as follows:

#1. Out-of-state client retained lawyer to “buy a crane” from a Vermonter. Client was only available by e-mail and did not need lawyer to contact the party selling the crane. Client only needed a contract, and to have lawyer run the purchase money through lawyer’s trust account. A check arrived by Fed Ex. It was drawn on a Canadian bank and exceeded the sum of purchase price + lawyer’s fee. Client sent an e-mail instructing lawyer to wire funds to the seller and to “keep the extra.”

#2. Closing attorney received an e-mail from Seller’s attorney instructing Closing attorney to wire purchase proceeds to Seller’s attorney. The e-mail had all of the details of the transaction correct. Closing attorney wired funds, pursuant to the instructions. Days later, Seller’s attorney contacted Closing attorney to ask where the money was. All involved determined that Seller’s attorney’s email had been hacked and monitored. Scam detected, money, however, gone.

#3. Not sure this one is a scam, but I think so. Attorney received a phone call from someone Attorney had never heard from before. Caller informed Attorney that Caller is calling about a matter that Attorney is working on with another lawyer. Caller used the name of an actual Vermont lawyer. Fortunately, in this scenario, Attorney recognized Lawyer’s name, knew she did not have any pending matters with him, and hung up. She called Lawyer who confirmed that he had never heard of Caller and did not represent Caller. We suspect it was the beginning of a scam.

Scenario 1 is increasingly common. It often involves a caller purporting to be from Texas. It usually involves a crane, but perhaps being modified to apply to Vermont, often involves large farm vehicles.

An element common to most scams is the out-of-state client, who you never meet, who either buys something from a Vermonter or seeks to enforce a debt against a Vermonter. Within days of your involvement, a bank check arrives by Fed Ex or UPS, followed by an e-mail with instructions to wire the funds somewhere outside of Vermont. It is not uncommon for the amount of the check to exceed the sum of the purchase price/debt & your fee, with the out-of-state caller instucting you to keep the rest for doing such prompt work.

As for receiving an e-mail from a lawyer whose account has been hacked, I do not know what to tell you other than, perhaps, confirm instructions by phone.

I also heard this week from a lawyer whose bank had assured him that it had placed an “ACH block” on his trust account. Meaning, no ACH debits to the account. In fact, it had not and someone was able to access the account and withdraw funds. Even after the lawyer contacted the bank, sorted out what had happened, and was informed that, now, the ACH block was in place……it happened again.

Finally, there is a scam in which an e-mail purporting to be from the client will instruct funds to be wired. Using me as your client in this example, the e-mail will come from micheal.kennedy@vermont.gov …. hold that thought, it’s relevant to today’s quiz.

The rules:

No rules. Open search engine. Exception – Question 5.

You may enter as a team.

Please forward this to as many colleagues and friends as possible.

Important: please email answers to michael.kennedy@vermont.gov

Question 1

In the paragraph above that begins with Finally, what is the scam?

Question 2

The following quote is me talking, either at a CLE or in response to an inquiry. There will be two blanks, each filled by the issue I’m discussing (same answer for each). Identify the issue.

“Your duty is to act competently to safeguard client information, including taking reasonable precautions to safeguard client communications from unauthorized access or receipt by third parties. Historically, ‘reasonable precautions’ have not included __________. Recently, however, several people associated with attorney regulation have indicated that it may no longer be reasonable not to ____________.”

Question 3

Client retains you for a flat fee of $2000. One month later, the fee agreement has not been reduced to writing and you have done some, but not much, work for Client. Which is most accurate under Vermont’s Rules of Professional Conduct?

A. Unless it’s a criminal case, you’ve violated the ethics rules.

B. The bulk of the funds should be in your trust account.

C. Fees paid in advance are earned upon receipt, so the funds should be in your operating account.

D. You violated the ethics rules by failing to reduce the agreement to writing within a reasonable time of commencing the representation.

Question 4

Lawyer called me with an inquiry. I listened, then I responded “whether you can represent Mr. Orange will turn on whether you received from Mr. Blonde information that could be significantly harmful to Mr. Blonde.”

Given my statement, what do we know for sure?

A. Mr. Blonde is Lawyer’s former client.

B. Mr. Orange is suing Mr. Blonde.

C. Mr. Blonde is deceased.

D. Mr. Blonde met with, but did not retain, Lawyer.

Question 5

A few weeks ago, Sarah Paulson won the Emmy for Best Lead Actress in a Limited Series or Movie for a role in which she played a well-known prosecutor. The show also starred John Travlota, Cuba Gooding Jr., and David Schwimmer and re-told the story of a trial that took place over 20 years ago.

Not many (if any) of these posts referenced tech competence and government attorneys.

Some of you might know my friend and colleague Brian Martin. Brian is licensed to practice in Vermont, but recently moved to D.C. to take a job with Consumer Financial Protection Bureau. Earlier this week, Brian sent me an article that highlights the dangers of government attorneys not understanding technology.

Note: if you click on the article, the “warnings” aren’t real. They’re part of the article’s graphics. The article is HERE. It raises serious questions not only about the application of the ethics rules to government attorneys, but about the harm that could result from a government attorney’s failure to understand technology.

The article hit home.

As recently as June 2012, I was the disciplinary prosecutor. I never had occasion to, for example, have to review a lawyer’s hard drive and introduce into evidence data that it contained. Or to prosecute a lawyer for failing to take reasonable precautions to protect electronically stored information. Very candidly, I don’t know that I would have known how to handle either situation. Following the theme in the article Brian sent me, would I have ruined a lawyer’s reputation & career by prosecuting a tech-related violation that I did not understand? Conversely, might I have dismissed a complaint that deserved prosecution merely because I did not understand a tech issue that, in fact, was clear evidence of a violation of the rules?

Anyhow, the article that Brian sent is another reminder that the duty of competence includes tech competence, no matter the area of law in which an attorney practices.

James Madison was 1 of 2 future US Presidents to sign the Constitution. His lifelong home was an estate in Orange County, Virginia. Vermonters should recognize the name of Madison’s estate.

What was the name of Madison’s estate?: MONTPELIER

Who was the other future US President to sign the Constitution? GEORGE WASHINGTON

Question 2

What’s the subject of the most recently ratified amendment?

A. Congressional salaries. The 27th Amendment. It prohibits congressional raises from taking effect until the next session of Congress. It was ratified in 1992. Strangely, it was presented for ratification by the States in 1789, as part of the original Bill of Rights. Thus, not only is it the most recent amendment, it is the one that took the longest to ratify.

B. Equal Rights

C. Presidential Succession

D. Poll Taxes

Question 3

Top 5?

Especially in election years, the 1st and 2nd Amendment are often in the news. Most lawyers remember studying the 4th & 5th in law school. That leaves #3. What does the 3rd Amendment prohibit?

The quartering of soldiers in private homes.

Question 4 (Author & Title: 1 point each)

These statements refer to the Constitution. The same author wrote each, and each appears in the same place. Please identify the author and what you’re reading if you come across the statements.

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?

“It is emphatically the province and duty of the Judicial Department to say what the law is.”

Chief Justice John Marshall in Marbury v. Madison.

Question 5

In an episode of The Office, Michael Scott ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

“It was on company property, with company property.”

Then, citing a clause in the Bill of Rights, Michael said “So, _______, we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

September 17 was Constitution Day. Earlier this week, the Vermont Bar Association and the Vermont Judiciary teamed to present a Constitution Day panel, part of an ongoing collaboration to promote the Constitution, civics, and the importance of both the separation of powers & the rule of law.

I was fortunate to be asked to moderate a fantastic panel that included (in order of appearance):

Superior Judge Robert Mello who spoke on the origins of the Constitution & the Bill of Rights;

Associate Justice Beth Robinson who used the 8th Amendment to present a case study, one in which she engaged the audience on different methods of interpreting the text;

Associate Justice John Dooley who spoke on the 14th Amendment and the relation between the federal and state constitutions;

Superior Judge Nancy Waples who used a personal story to highlight the connection between the Constitution and Citizenship; and,

Chief Justice Paul Reiber who pointed out how radical it was, at least 229 years ago, to design a government in which each of the branches had “checks & balances” over the others.

The event was just the beginning. The VBA and the Judiciary intend to bring civics on the road, including into schools. If you’d like to get involved, please get in touch. Or, if you’d like one of the pocket constitutions that were distributed to everyone who attended, be on the lookout for our next event! Oh, and finally, by the middle of next week, a video of the event will be available online.

Now, on to the quiz. Of course, it’s a special Constitution Day theme.

Team entries welcome.

Five for Friday is usually “open book.” I’m not saying this week’s isn’t, but give it a shot without looking up the answers.

email answers to michael.kennedy@vermont.gov

Please consider forwarding the quiz to colleagues

I’ll post the answers on Monday morning

Question 1 (2 parts, 1 point each)

James Madison was 1 of 2 future US Presidents to sign the Constitution. His lifelong home was an estate in Orange County, Virginia. Vermonters should recognize the name of Madison’s estate.

What was the name of Madison’s estate

Who was the other future US President to sign the Constitution?

Question 2

What’s the subject of the most recently ratified amendment?

A. Congressional salaries

B. Equal Rights

C. Presidential Succession

D. Poll Taxes

Question 3

Top 5?

Especially in election years, the 1st and 2nd Amendment are often in the news. Most lawyers remember studying the 4th & 5th in law school. That leaves #3. What does the 3rd Amendment prohibit?

Question 4 (Author & Title: 1 point each)

These statements refer to the Constitution. The same author wrote each, and each appears in the same place. Please identify the author and what you’re reading if you come across the statements.

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?

“It is emphatically the province and duty of the Judicial Department to say what the law is.”

Question 5

In an episode of The Office, Michael Scott ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

“On company property, with company property.”

Then, citing a clause in the Bill of Rights, Michael said “So, we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

PS: September 17 is also the halfway mark to St. Patrick’s Day. It’s all downhill from here!

September 17 was Constitution Day. Earlier this week, the Vermont Bar Association and the Vermont Judiciary teamed to present a Constitution Day panel, part of an ongoing collaboration to promote the Constitution, civics, and the importance of both the separation of powers & the rule of law.

I was fortunate to be asked to moderate a fantastic panel that included (in order of appearance):

Superior Judge Robert Mello who spoke on the origins of the Constitution & the Bill of Rights;

Associate Justice Beth Robinson who used the 8th Amendment to present a case study, one in which she engaged the audience on different methods of interpreting the text;

Associate Justice John Dooley who spoke on the 14th Amendment and the relation between the federal and state constitutions;

Superior Judge Nancy Waples who used a personal story to highlight the connection between the Constitution and Citizenship; and,

Chief Justice Paul Reiber who pointed out how radical it was, at least 229 years ago, to design a government in which each of the branches had “checks & balances” over the others.

The event was just the beginning. The VBA and the Judiciary intend to bring civics on the road, including into schools. If you’d like to get involved, please get in touch. Or, if you’d like one of the pocket constitutions that were distributed to everyone who attended, be on the lookout for our next event! Oh, and finally, by the middle of next week, a video of the event will be available online.

Now, on to the quiz. Of course, it’s a special Constitution Day theme.

Team entries welcome.

Five for Friday is usually “open book.” I’m not saying this week’s isn’t, but give it a shot without looking up the answers.

email answers to michael.kennedy@vermont.gov

Please consider forwarding the quiz to colleagues

I’ll post the answers on Monday morning

Question 1 (2 parts, 1 point each)

James Madison was 1 of 2 future US Presidents to sign the Constitution. His lifelong home was an estate in Orange County, Virginia. Vermonters should recognize the name of Madison’s estate.

What was the name of Madison’s estate

Who was the other future US President to sign the Constitution?

Question 2

What’s the subject of the most recently ratified amendment?

A. Congressional salaries

B. Equal Rights

C. Presidential Succession

D. Poll Taxes

Question 3

Top 5?

Especially in election years, the 1st and 2nd Amendment are often in the news. Most lawyers remember studying the 4th & 5th in law school. That leaves #3. What does the 3rd Amendment prohibit?

Question 4 (Author & Title: 1 point each)

These statements refer to the Constitution. The same author wrote each, and each appears in the same “work”. Please identify the author and title of the “work”.

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?

“It is emphatically the province and duty of the Judicial Department to say what the law is.”

Question 5

In an episode of The Office, Michael Scott ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

“On company property, with company property.”

Then, citing a clause in the Bill of Rights, Michael said “So, we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

PS: September 17 is also the halfway mark to St. Patrick’s Day. It’s all downhill from here!

Not making enough money? Maybe it’s your own fault. Check out this post from the ABA Journal.

For those of you who want the upshot, yesterday, Jack Newton, Clio’s CEO, gave the opening address at Clio’s Cloud Conference. Per the ABA Journal, Newton

“shocked many in the audience after revealing that, among Clio’s 150,000 daily active users, lawyers were only billing 28 percent of their available work hours (approximately 2.24 hours of an 8-hour work day). That number, according to Newton, was closer to 22 percent for solo practices.”

The post goes on to note that technology can help lawyers to

“’get the missing six hours per day back,’ according to Newton. To help attendees do this, the conference provided sessions and speakers designed to help them choose the right tech tools and keep track of the right metrics.”

Last week, I attended the International Conference of Legal Regulators 2016. One of the sessions discussed ways that lawyers and law firms can use technology to improve efficiency, thereby improving the quality of services provided and, in the process, improving the bottom line. The key takeaway: don’t invest in technology merely because it’s technology. First, identify what it is that you (or your firm/office) does, then look for technology that will help you to do it better. A dairy farmer who buys the latest gaming system probably won’t increase milk production among the herd.

I’ve been clear: Rule 1.1’s duty of competence includes tech competence. In addition, as the ABA Journal’s post points out, technology can help lawyers to run more efficient and cost effective offices. However, technology is not a “one-size-fits-all” proposition. So, remember: think before you buy.

It was a fantastic week in D.C. I love that city. Later this week I’ll blog on some of the hot topics/trends in legal ethics & attorney regulation that were covered at the conference. For now, the answers to last week’s Five for Friday.

Oh, and in case you missed it on a sunny September Sunday, here’s the latest Was That Wrong?

The day before the conference, I stopped by GW Law, my alma mater, to attend a professional responsibility class taught by Professor Bob Tuttle. He was fantastic! More practical tips in 1 hour than many students receive in their entire law school careers. One of the day’s topics was “scope of representation & allocation of authority.” With that in mind, which is most accurate under the Vermont Rules of Professional Conduct?

A lawyer:

A. shall abide by the client’s objectives for the representation & should abide by the client’s decision as to the means by which those objectives are pursued.

B. shall abide by the client’s objectives for the representation & should defer to the client’s reasonable decisions as to the means by which those objectives are pursued.

C. shall abide by the client’s objectives for the representation & shall consult with the client as to the means by which those objectives are pursued. Rule, 1.2(a).Note – the rule says that consulting with the client as to the means by which objectives are pursued is REQUIRED by Rule 1.4, the rule on communication with a client.

D. should by the client’s objectives for the representation & should consult with the client as to the means by which those objectives are pursued.

Question 2

In a criminal case, and for the purposes of the Vermont Rules of Professional Conduct, which is different from the others?

A. Whether to request a competency exam. See, Rule 1.2(d). A criminal defense lawyer may request a competency exam over the client’s objection. The other 3 are decisions that are left to the client.

B. Whether to accept a plea.

C. Whether to to waive a jury trial.

D. Whether to testify.

Question 3

Lawyer called me with an inquiry. I listened, then asked a question of my own: “what type of instrument did you deposit?” Most likely, Lawyer called to discuss:

A. a real estate closing

B. disbursing funds from trust in reliance upon a deposit that had not yet become collected funds. Generally, a lawyer may not disburse funds unless the funds are “collected funds.” However, Rule 1.15(g) lists several instruments against which a lawyer may disburse upon deposit.

C. depositing funds into an account that will earn interest for the client

D. deposits that are (and are not) subject to the three-way reconciliation requirement.

Question 4

Attorney called me with an inquiry. I listened, then I asked, “will the harm be to the actor or to someone else?” What specific issue did Attorney call to discuss?

Disclosing information relating to the representation when the lawyer reasonably believes that disclosure is required “to prevent the client or another person from committing a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, a person other than the person committing the act.” See, Rule 1.6(b)(1).If the harm will be to the actor, disclosure is permissive, but not mandatory. See, Rule 1.6(c)(1).

Question 5

Attorney Albert Bacon Fall was admitted to the New Mexico bar in 1891. Among other things, he successfully defended the accused killer of Sheriff Pat Garrett, served on the New Mexico Supreme Court, was elected to the United States Senate, and served two years as Secretary of the Interior under President Harding.

Fall resigned his post as Secretary of Interior in disgrace as a result of a controversy that involved the Navy and leases that were awarded without competitive bidding to friends of his. He was eventually convicted of conspiracy & bribery and, as a result, became the first person sentenced to prison for misconduct while serving in the Cabinet.

What is the name commonly given to the controversy that is associated with Fall’s criminal conduct and resignation?

In the famous “Red Dot” episode of Seinfeld, George Costanza has sex in his office with a character known only as “the cleaning woman.” His boss finds out. Here’s their ensuing exchange :

(Scene) In the boss’ office.

Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?

George: Who said that?

Boss: She did.

George: Was that wrong? Should I have not done that? I tell you I gotta plead ingnorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frouned upon, you know, cause I’ve worked in a lot of offices and I tell you peope do that all the time.

Costanza’s response served as my inspiration for a semi-regular Was That Wrong? column on the blog. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline, highlighting misconduct that I hope you’ll instinctively avoid without needing a CLE that urges you to do so. The original Was That Wrong is HERE. It involved a Florida case, and the Sunshine States brings us this edition as well.

Great program so far. Nationally and globally the push is towards proactive regulation. Simply – a focus on prevention rather than discipline. I’m proud to say that Vermont is ahead of the curve. Our inquiry program, CLE programs, and non-disciplinary dispute resolution program promote education and compliance. Yes, lawyers who lie, cheat, or steal will be prosecuted. Fortunately, they’re few & far between in Vermont and should not receive the bulk of our attention & resources.

Rather, in 2012, we decided to focus more of those resources on prevention & education, in the form of inquiries, CLEs, and, things like 5-question ethics quizzes. Our focus on creating (as one speaker called them yesterday) “habits of professionalism” has been a demonstrable success. Over the past 4 years, inquiries have risen by 66%, while complaints have fallen by 40%. I recognize that correlation isn’t causation. However, it seems to me that the effect has been to provide lawyers with the tools to reap what 99% of you already want to sow: a culture of compliance. I plan to attend some more great programs are on today’s agenda, but from what I’ve learned so far, we’re on the right path.

To the quiz. Reminder:

Open book, open search engine, consult with as many friends as you’d like.

Exception – #5

Team entries allowed

Email answers to michael.kennedy@vermont.gov

I’ll post the answers on Monday morning

Please forward the quiz to friends & colleagues

Question 1

The day before the conference, I stopped by GW Law, my alma mater, to attend a professional responsibility class taught by Professor Bob Tuttle. He was fantastic! More practical tips in 1 hour than many students receive in their entire law school careers. One of the day’s topics was “scope of representation & allocation of authority.” With that in mind, which is most accurate under the Vermont Rules of Professional Conduct?

A lawyer:

A. shall abide by the client’s objectives for the representation & should abide by the client’s decision as to the means by which those objectives are pursued.

B. shall abide by the client’s objectives for the representation & should defer to the client’s reasonable decisions as to the means by which those objectives are pursued.

C. shall abide by the client’s objectives for the representation & shall consult with the client as to the means by which those objectives are pursued.

D. should by the client’s objectives for the representation & should consult with the client as to the means by which those objectives are pursued.

Question 2

In a criminal case, and for the purposes of the Vermont Rules of Professional Conduct, which is different from the others?

A. Whether to request a competency exam.

B. Whether to accept a plea.

C. Whether to to waive a jury trial.

D. Whether to testify.

Question 3

Lawyer called me with an inquiry. I listened, then asked a question of my own: “what type of instrument did you deposit?” Most likely, Lawyer called to discuss:

A. a real estate closing

B. disbursing funds from trust in reliance upon a deposit that had not yet become collected funds.

C. depositing funds into an account that will earn interest for the client

D. deposits that are (and are not) subject to the three-way reconciliation requirement.

Question 4

Attorney called me with an inquiry. I listened, then I asked, “will the harm be to the actor or to someone else?” What specific issue did Attorney call to discuss?

Question 5

Attorney Albert Bacon Fall was admitted to the New Mexico bar in 1891. Among other things, he successfully defended the accused killer of Sheriff Pat Garrett, served on the New Mexico Supreme Court, was elected to the United States Senate, and served two years as Secretary of the Interior under President Harding.

Fall resigned his post as Secretary of Interior in disgrace as a result of a controversy that involved the Navy and leases that were awarded without competitive bidding to friends of his. He was eventually convicted of conspiracy & bribery and, as a result, became the first person sentenced to prison for misconduct while serving in the Cabinet.

What is the name commonly given to the controversy that is associated with Fall’s criminal conduct and resignation?